Is Your E-Discovery Solution Causing You “Irreparable Harm”?

We all know the point of buying an e-discovery solution. The idea is simple and compelling. Buying an in-house product is supposed to save time, add efficiency and allow the purchaser to quickly and easily respond to court and FOIA requests. However, it is clear that achieving these goals has a lot to do with the solution you ultimately purchase. If you pick a metered solution that charges by gig, or usage, or any other metric, it is not uncommon at all to find yourself at the bottom of a very deep hole with no way to get out other than to alter your legal strategy and hope for court leniency. That is exactly the situation that ICE finds itself in, in the case of “NDLON v. ICE.”

What is remarkable about NDLON v. ICE is not the case, which is basically a FOIA request, but instead the fight that has ensued over the collection as a result of a recent ruling by Judge Scheindlin on FOIA collections and the need to produce standard metadata fields. Based on that ruling, the government finds itself in the position of needing to produce the metadata associated with the documents collected in the NDLON FOIA request. As a function of that, they filed a Legal Memorandum in support of a motion to stay pending appellate review, arguing among other things that the order would cause the Government “irreparable harm”.

“Furthermore, the Court misperceived the harm imposed by its Order on the Government. See Order at 20. As discussed supra, the FBI would be required to redo its entire search for records—a search that already has generated approximately 500,000 pages of potentially responsive documents. In addition, because of the time constraints associated with the “opt-out” production, ICE obtained permission to use an e-discovery program called Clearwell for FOIA purposes, at a cost of over $270,000 in upgrades, and the acquisition of a $32,000 server. See Pavlik-Keenan Decl., ¶¶ 7-8, 11. Continued use of the software will require an additional expenditure of funds in an unknown amount, perhaps in the hundreds of thousands, if not millions, of dollars. See id. ¶ 13.”

The part of their argument that is most striking to me is that last part: “Continued use of the software will require an additional expenditure of funds in an unknown amount, perhaps in the hundreds of thousands, if not millions, of dollars.” This is the most glaring and obvious example of the evil inherent in the metered solution. Sure ICE bought in cheaply enough at 32K, but then they had to spend an additional 270K, and now they’re faced with the choice of either paying an unknown amount that could run well into the millions or pleading with the court for mercy. When the e-discovery solution you have chosen stops solving problems and effectively becomes one, it is time to find a new solution.

Whether you are buying an electronic discovery platform for collection, document review, FOIA requests or any of the other applications, you should insist on a fixed-fee price that allows you to use the solution as much as you want, allowing you to establish your legal strategy based on the merits of the case and not the cost associated with your e-discovery solution.

Tim Leehealey is Chairman and CEO of AccessData. Prior to joining AccessData he was VP of Corporate Development at Guidance Software. Prior to that he was an investment banking analyst covering the security market at Wedbush Morgan.